Facing Eviction? Know Your Defenses

Many Americans face eviction every year. While dealing with the prospect of losing your home is never easy, you aren’t alone. Local laws provide protections for tenants such as a notice requirement, the possibility of paying partial rent, and more. Below you will find key information about possible defenses to an eviction action and where you can go to find more legal information. Remember, if you are having a landlord tenant issue, time is always of the essence.

Improper Notice

Each state has its own requirements for the notice of eviction and the method in which the tenant receives the notice. If the landlord did not provide sufficient notice prior to filing a court action, or did not correctly deliver or serve the notice to the tenant, the tenant may have a defense to the eviction (even if the tenant has not paid the required rent). If this argument is successful, the landlord will usually be forced to redo the procedure from the beginning.

Acceptance of Partial Rent

If the landlord accepts partial rent from the tenant, knowing that the tenant is in noncompliance with the lease agreement — either because of nonpayment of rent or due to some other reason — the right to evict the tenant during that rent period is usually waived. The landlord could have the tenant sign a paper indicating that partial acceptance on the part of the landlord waives any rights the tenant would otherwise have to claim partial payment. Such waivers are valid in many jurisdictions.

Failure of the Landlord to Maintain the Premises

A tenant seeking to use this theory as a defense to eviction should provide written notice to the landlord that there is a defect in the property. The notice to the landlord typically must provide the landlord with a reasonable amount of time to accomplish the repairs. If the landlord is nonresponsive, the tenant may then hire and pay for a professional to make the necessary repairs, then deduct the cost of the repairs from the rent paid to the landlord. Some states restrict this repair-and-deduct tactic and provide that the cost of the repair must not be more than one month’s rent.

Retaliatory Eviction

This type of eviction happens when the landlord takes an action against a tenant for acting as a tenant activist. If the landlord seeks to evict the tenant for informing government agencies of code violations, or for requesting that the landlord make repairs and maintain the rental property in fit and habitable condition, a retaliatory eviction claim may be a valid defense to an eviction action.

Constructive Eviction

Constructive eviction occurs when residential rental property is in an uninhabitable condition. When rental property is uninhabitable, it is said to create circumstances under which the tenant has been deprived of the full use and possession of the rental property, and has therefore been “evicted.” The theory of constructive eviction is that since the tenant did not receive what was contracted for, the tenant is not obligated to continue paying rent to the landlord. In order for such a claim to be effective, the tenant should give the landlord written notice of reasons for the constructive eviction and provide the landlord with a reasonable amount of time to correct the problems. If the landlord does not fix the problems within a reasonable amount of time, the tenant may leave the rental property and not be responsible for payment of rent which would have otherwise been due.

Fair Housing

In 1968 the federal government passed the Fair Housing Act, which has since been modified and adopted by states and various localities. The Fair Housing Act as amended prohibits discrimination in housing and related transactions on the basis of race, color, national origin, sex, religion, disability, and familial status (the presence or anticipated presence of children under 18 in a home). The Act covers discrimination in all types of housing-related transactions, including rentals and leases.